### THE STATE OF SOUTH CAROLINA In The Supreme Court

In the Bennett Joseph Sc hiller, III, Respondent.
Appellate Case No. 2017-001645

Opinion No. 27753 Submitted October 24, 2017 – Filed November 22, 2017

PUBLIC REPRIMAND

Lesley M. Coggiola, Disciplinary Counsel, and Julie K. Martino, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.

Thomas A. Pendarvis, of Pe ndarvis Law Offices, PC, of Beaufort, for Respondent.

PER CURIAM: In this attorney disciplinary matter, respondent and the Offic e of Disciplinary Counsel have ente red into an Agreement for Disc ipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Discipl inary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). In the Agreement, respondent admits misconduct and consents to a public reprimand. We accept th e Agreement and issue a public reprimand. The facts, as set forth in the Agreement, are as follows.

Facts
Co-counsel was retained by Clie nt, a North Carolina resident, t o represent him with regards to a motor vehicle accident that occurred in North Carolina. Cocounsel subsequently associated respondent on the case. Neithe r co-counsel nor respondent were admitted to practice law in North Carolina.
Client signed two fee agreemen ts. The first agreement was a fe e agreement statingthe attorneys' fee was 33% of a ny recovery and that if there was no recovery, Client would be responsible for " all actual expenses." The agr eement did not specify whether the attorneys' f ee would be calculated before o r after litigation and other expenses were deducted. Although respondent asserted he and his cocounsel explained to Client ho w funds would be distributed unde r the agreement, respondent admits that the failu re to document in writing wheth er litigation and other expenses are to be deducted before or after a contingent fee is calculated is a violation of Rule 1.5(c) of the North Carolina Revised Rules of Professional Conduct. 1

After recovering the policy lim it of $30,000 from the at-fault driver's insurance carrier, respondent and co-counsel pursued recovery under Clien t's underinsured motorist (UIM) policy. That c arrier tendered $220,000 to respo ndent and cocounsel, which represented the policy limit of $250,000 minus a set-off of $30,000 based on the payment by the at-fault driver's carrier.
Client refused to accept the fund s due to a disagreement over t he disbursement statement, specifically, the dis bursement of attorneys' fees. Client informed respondent and co-counsel he was te rminating the "fee contract, " as he believed the fees were unreasonable and he did not understand there were oth er fee agreement options. Client also stated he did not understand from the fee agreement that respondent and co-counsel could pl ace a lien on the insurance p roceeds for the amount of the attorneys' fees owed.
Thereafter, respondent sent letters to Client's UIM carrier informing the carrier that he and co-counsel had a lien on the $220,000 for their one-third contingency fee. In one of the letters, respondent directed the carrier not to discuss the matter with Client or Client's brother wit hout the consent of respondent or co-counsel.
Subsequently, Client left a voice message with the carrier noti fying the carrier that he had terminated respondent a nd co-counsel. Client also sent a letter to respondent and co-counsel asking them to notify the carrier tha t they were no longer representing Client.

The carrier sent a letter to re spondent informing him Client ha d notified the carrier that he had discharged respondent and co-counsel. The carrier requested respondent contact Client about the outstanding claim. Three weeks later, and over

1 Pursuant to Rule 8.5(b)(2) of the South Carolina Rules of Prof essional Conduct, Rule 407, SCACR, because the predominant effect of the conduct at issue w as in North Carolina, the North Carolina Revised Rules of Pr ofessional Conduct apply.a month after Client requested such action, respondent and co-counsel notified the carrier they were no longer repr esenting Client and returned th e insurance proceeds to the carrier.
Client alleged respondent and co-counsel failed to withdraw as counsel after he terminated the fee agreement and that they failed to inform the UIM carrier they were no longer representing Client after he requested they do s o. Respondent admits his failure to withdra w from representation after multip le communications from Client requesting respondent and co-counsel cease represen tation violated Rule 1.16(a)(3) of the North Carolina Revised Rules of Professional Conduct.
Finally, Client alleged respondent and co-counsel forged Client's signature on a document entitled "Settlement Agre ement and Covenant Not to Enf orce Judgment

- North Carolina." Client state d he had never seen the document but it had a signature purporting to be his that was witnessed by respondent and notarized by respondent's paralegal.
Respondent and co-counsel explained they discussed with Client the possibility of pursuing the at-fault driver's personal assets but Client understood the only way to secure payment more quickly was to accept the limits of the dri ver's insurance policy by way of a covenant not t o execute and accept the limit s of the UIM coverage on a policy release. Respondent and co-counsel stated Client understood the difficulty of recovering from the driver's personal assets and therefore agreed to accept the insurance limits. R espondent and co-counsel stated they explained the settlement agreement and disburse ment from the driver's carrier to Client and asked him to come to the office and sign the covenant not to ex ecute and the check issued by the carrier. According to respondent and co-counsel, Client directed them to sign the items for him and send him the check. 2 Respondent signed the covenant not to execute, witnes sed it himself, and had his para legal notarize it. The document stated the person signing was affirming he had car efully read the document, understood its conten ts, and was signing it as his ow n free act. The cover letter respondent sent to C lient along with the check did not reference the covenant not to execute or i ndicate a copy was enclosed.
Respondent admits the covenant not to execute was falsely witne ssed and notarized and that he did not provide a c opy to Client. Respondent states the document was

2 Respondent provided documents to support his position that Cli ent gave him permission to sign Client's name, but the documents are not contemporaneous with t he signing and notarizing of the documents.not relied on by the at-fault driver's insurance carrier becaus e Client refused to sign the settlement agreement.
Respondent admits his actions with regard to the covenant not t o execute were improper and in violation of the following North Carolina Revis ed Rules of Professional Conduct: Rule 4.1 (a lawyer shall not knowingly ma ke a false statement of material fact or la w to a third person); Rule 5.3( b) (a lawyer with supervisory authority over a nonlawyer shall make efforts to en sure the nonlawyer's conduct is compatible with the professional obligat ions of the lawyer); Rule 5.3(c)(1) (a lawyer is res ponsible for the conduct of a no nlawyer who commits a violation of the Rul es of Professional Conduct when t he lawyer orders or ratifies such conduct); and Ru le 8.4(d) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice ).

Law

Respondent admits that by his conduc t he has violated the above provisions of the North Carolina Revised Rules o f Professional C onduct. He also admits the violations constitute grounds for discipline under Rule 7(a)(2) of the South Carolina Rules for Lawyer Disciplinary Enforcement, Rule 413, S CACR.

Conclusion

We find respondent's misconduc t warrants a public reprimand. A ccordingly, we accept the Agreement and publicly reprimand respondent for his misconduct. In addition, as set forth in the Ag reement, respondent shall (1) c omplete the Legal Ethics and Practice Program Eth ics School and a notary public c lass within one year of being disciplined; (2) require all notary publics in hi s office to attend a notary public class within the sam e time period, to maintain records of attendance, and to sign a statement that the y have read and will abide by t he South Carolina Notary Public Reference Manual; a nd (3) pay the costs incurred in the investigation of this matter by ODC and the Commission on Lawye r Conduct within thirty days of the date of this opinion.

PUBLIC REPRIMAND.

BEATTY, C.J., KITTRED GE, HEARN, FEW and JAMES, JJ., concur.